TORTS EXAM OUTLINE
NEGLIGENCE
Ø When an individual’s actions fall below standard of conduct imposed by law which protects others against unreasonable risk of harm; a) reasonable person should anticipate this risk of harm; b) an individual acts unreasonably by not guarding against risk of harm which should be apparent (foreseeable) **Mussivand v. David
Ø Risk vs. Benefit (Hand formula):
– P= Probability that event will occur
– L= Degree of harm resulting from occurrence of event
– B= Burden, such as inconvenience or costs, of taking adequate precautions to prevent occurrence of event
– If B<PL , the precaution should have been taken
– **Cases: U.S. v. Carroll Towing; Zapata; McCarty v. Pheasant Run
Prima Facie Case:
1. P has suffered an injury
2. A owed a duty to a class of person including P to take care not to cause an injury of the kind suffered by P
3. A breached that duty of care
4. A’s breach was the actual and proximate cause of P’s injury
Ø Duty: Obligation to protect another against unreasonable risk of injury
· Objective Standard: Reasonable, ordinary, prudent person. Knowledge of an average community member. (Physical disabilities= what is reasonable for a person with those disabilities. Mental disabilities still held to reasonable prudent person standard.) **Vaughan v. Menlove; Martin v. Evans
· Professionals: 1. Duty to use the skill, knowledge and care of a practitioner in a similar community 2. Specialist Standard: superior knowledge **Myers v. Heritage Acres, Inc, The T.J. HOOPER (professional custom)**
· Medical Malpractice:
a)National standard or locality standard; judges physicians by the knowledge of those practicing in the same or a similar community **Johnson v. Riverdale Anesthesia Assoc.
b)INFORMED CONSENT DOCTRINE
1) Requirement that patient be provided with enough information to make an informed decision regarding medical treatment **Largey v. Rothman
2) Disclosure of all material risks, including degree of side effects and mortality
3) Majority- Objective Standard: Whether reasonable patient would have withheld consent had information at issue been disclosed. **Canterbury (reasonable patient rule)
4) Minority- Subjective Standard: Whether patient would have withheld consent had information at issue been provided
· Children: Level of conduct of a reasonable person of that age/experience/education/intelligence. If child engaged in adult activity, then held to standard of care that a reasonable adult doing that activity would exercise. Generally no capacity below age 4. Appelhans v. McFall (Tender Years Doctrine) [Note: Parents not responsible for child’s negligent acts.]
· Common Carriers: Insurers of safety of passengers and cargo. Higher degree of care. **Jones v. Port Authority of Allegheny
· Automobile Driver to Guest: Owner-driver not liable for any injuries received by a non-paying passenger, unless driver was grossly negligent or reckless.
· Emergencies: Affirmative Duties to rescue and protect. Duty to act as a reasonable person would under sudden and unexpected circumstances. Unavailable if emergency is self created.
· Conduct of Others: Duty to guard against the negligence of others. Ex: Duty to look both ways before crossing street; duty to watch out for kids when driving through neighborhood
· Owners of Occupiers of Land: Duty to take precautions regarding unreasonably dangerous conditions.(Rowland v. Christian places no distinction between categories)
Trespasser:
1. Enters land without permission
2. No duty to undiscovered trespasser except to refrain from acting willfully and wantonly
3. Duty to discovered and tolerated trespassers is to warn of or attempt to guard against injury from concealed or dangerous conditions. Leffler v. Sharp
Child Trespassers:
1. Attractive Nuisance Doctrine: Shows trespass should have been anticipated. Duty to exercise ordinary care to avoid reasonably foreseeable risk of harm **Jolley v. Sutton London Borough Council
Licensee
1. Enters land with permission for own purpose (a. Includes social guests b. Assumes risks of condition of property c. Loses status when exceeds scope)
2. Duty to Warn of known concealed dangerous conditions
3. Duty to exercise reasonable care in conduct of operations
Invitee
1. Enters land by invitation for business purpose of landowner or occupier (Ex: Land held open to public. Loses status when exceeds scope.)
2. Duty of reasonable care, including inspecting and w
are. However, courts may hold industries to a higher standard than customary. T.J.Hooper
§ Exception: Medical. For certain professions Court will look to respective standard practice rather than rely on standard reasonable care. Johnson v. Riverdale Anesthesia.
· Exception: informed consent claim. Prudent patient standard accepted over professional standard of care. Standard for medical malpractice should be what a physician should disclose to a reasonable patient so they may make informed decision. Largey v. Rothman
· Cost Benefit Analysis
§ Risk vs. Benefit (Hand Formula):
§ P= Probability that event will occur
§ L=Degree of harm resulting from occurrence of event
§ B=Burden, such as inconvenience or costs, of taking adequate precautions to prevent occurrence of event
§ If B<PL, the precaution should have been taken
§ ** CASES:
o U.S. v Carroll Towing: A tug boat was towing unattended line of barges, one of them broke away and wrecked havoc on the pier. Was barge owner liable? Yes, because the burden on barge owner to prevent accident relative to how much injury it caused given the likelihood that such an injury might happen.
o Zapata: Bank’s random examination system was in accordance with standard custom of banks and did not result in significantly greater amount of frauds.
o McCarty v. Pheasant Run: Plaintiff fails to show how mishap could have been prevented by reasonable cost and efficacy. Woman sexually assaulted in hotel room b/c sliding door behind window wasn’t locked.
· Admissibility of Expert Opinion: Daubert Test
o Whether the theory of technique used by the expert can be or has been tested
o Whether the theory or technique has been subject to peer review and publication
o The known or potential rate of error of the method used
